IMPORTANT POINT
Vulgarity and obscenity do not have similar connotations. Vulgarity aroused a feeling of disgust revulsion and also boredom whereas obscenity has the tendency to deprave and corrupt these minds which are open to such immoral influences. And section 292 Indian Penal Code makes punishable obscene and not vulgar writings.

JUDGMENT

Amarendra Nath Sen, J. - Samaresh Bose, the first appellant, is a well-known writer of Bengali Novels and stories. He is the author of a novel which under the caption Prajapati came to be published in Sarodiya Desh (the annual pooja number of the Bengali Journal Desh) for the Bengali year 1374 B. S. Desh is a journal of repute with wide circulation and the puja number is read by lovers of Bengali literature of all age groups all over India, Sitangshu Kumar Dasgupta, the second appellant was the publisher and the printer of the journal at the relevant time.

2. On the 2nd of February 1968, Amal Mitra, a young Advocate, made an application in the Court of the chief Presidency Magistrate at Calcutta complaining that the said novel Prajapati "contains matters which are obscene and both the accused persons have, sold, distributed, printed and exhibited the same which has the tendency to corrupt the morals of these in whose hands the said Sarodiya Desh may fall and the reading public as well" and "both the accused persons have committed an offence punishable under section 292 Indian Penal Code (I.P.C. for short) and under .section 292 read with section 109 I.P.C.

3. On the basis of the said complaint and after compliance with the necessary formalities, a criminal case being case No. 353/68 against both the accused persons was started and the said criminal case was disposed of by the then Chief Presidency Magistrate of Calcutta by his judgment dated 11th February, 1968. The learned Chief Presidency Magistrate for reasons recorded in the judgment held:-

 "Two persons are facing their trial, accused No 1, Shri Samaresh Basu, a modern writer of repute and accused No.2, Shri Sitangshu Kumar Das Gupta, the Printer and Publisher of a very important magazine like Desh.

The novel in question has been found to be obscene and as such accused No. 1 Shri Samaresh Basu cannot escape liabilities. The same is also the condition with accused No.2 Shri Sitangshu Kumar Das Gupta. He has got special responsibilities to see that his publication may not affect the readers of the same.

For the reasons stated above, though the accused No. I Shri Samaresh Basu, is a powerful writer, I cannot but strike down the impugned novel, after declaring the same as obscene.

The result of my above findings, is to find both the accused guilty under section 292 I.P.C. and I convict both of them accordingly.

Next question arises as to what punishment should be inflicted.

Considering the facts and other connected matters I sentence both of them to pay a fine of Rs 201/- each in default to undergo S.I. for two months each.

Let the pages from 174 to 226 of Ext. 1 be destroyed under the provisions of section 521 Cr. P.C. after the period of appeal be over."

Against the judgment and order passed by learned Chief Presidency Magistrate both the accused preferred an appeal to the High Court at Calcutta. The complainant also filed a criminal revision in the High Court for enhancement of the sentence imposed by the Chief Presidency Magistrate on the two accused persons. On the criminal revision application which was numbered as Criminal Revision No. 299 of 1969 rule was issued by the High Court. The criminal appeal which was filed by the two accused persons was numbered as Criminal Appeal No. 106/69. The Criminal Appeal No. 106/69 and also the Criminal Revision No. 299/69 were disposed of by a Single Judge of the High Court by a common judgment delivered on 27.6.1972. The High Court discharged the rule in the criminal revision No. 299/69 and dismissed the appeal affirming the sentences imposed on both the accused persons with the following further observations:

"In the Petition of complaint only the publication of the novel in the Saradia Sankha of Desh of the Bengali Year 1374 at pp. 174 to 225 was mentioned. Only one copy of that journal Desh was marked Ext. 1 in the court of the Magistrate. The learned Chief Presidency Magistrate bas directed that the pages from 174 to 226 of Ext. 1